Excerpt: - - the burden is certainly on the insurance company to prove that the third respondent was not the owner on the date of the accident and that the insurance company having failed to do so, they have to suffer the liability......he was overthrown from the lorry and then run over by the same lorry. the first respondent is the insurance company. the third respondent is the registered owner. the vehicle was insured with the first respondent and the policy for the same stood in the name of the third respondent. the tribunal found that the accident happened due to rash and negligent driving of the vehicle by the driver and that, therefore, the claimant is entitled to compensation. the tribunal also fixed the compensation at rs. 36,000. the correctness of the quantum is now not in dispute. however, the tribunal directed the second respondent alone to be liable and dismissed the claim as against respondents nos. 1 and 3. this was on the ground that the lorry had been transferred by the third respondent to the second.....

Judgment:

V. Ramaswami, J.

1. This is an appeal by the claimant in a motor accident case. The appellant is the wife of the one Mohamed Ismail who met with an accident on March 7, 1981, and died as a result of the same at the spot. It is stated that he was standing in lorry TMS No. 9097 and due to the negligent driving of the lorry by the driver he was overthrown from the lorry and then run over by the same lorry. The first respondent is the insurance company. The third respondent is the registered owner. The vehicle was insured with the first respondent and the policy for the same stood in the name of the third respondent. The Tribunal found that the accident happened due to rash and negligent driving of the vehicle by the driver and that, therefore, the claimant is entitled to compensation. The Tribunal also fixed the compensation at Rs. 36,000. The correctness of the quantum is now not in dispute. However, the Tribunal directed the second respondent alone to be liable and dismissed the claim as against respondents Nos. 1 and 3. This was on the ground that the lorry had been transferred by the third respondent to the second respondent and that the policy stood in the name of the third respondent and it had not been transferred to the second respondent.

2. We are at a loss how this conclusion could have been reached by the court below at all. None of the parties produced the registration certificate in order to show in whose name the vehicle was standing on the date when the accident occurred. The Tribunal purported to rely on the evidence of P.W. 1, the wife of the deceased, who was the claimant and P.W. 2, who was a co-employee travelling in the lorry, in support of its finding that the second respondent was the owner of the vehicle on the day when the accident happened. The evidence extracted in the order does not in any way show that there was any valid transfer of the vehicle to the second respondent on the day when the accident took place. The only sentence which has any bearing at all on this question is the one found in cross-examination of P.W. 1 which reads as follows :

'My husband was working in the lorry for about eight months prior to the accident and for the eight months the second respondent was the owner of the lorry.'

3. This was an inference by the claimant. She would not be a proper witness to speak to the fact as to who was the owner of the vehicle. The proper persons are respondents Nos. 2 and 3 or even the first respondent. They have not gone into the witness box to say as to who was the owner of the vehicle when the accident took place. P.W. 2, who is stated to be the person who was travelling with the deceased on the date of the accident, could not also be stated to know about the transfer. Even if he had stated in cross-examination that the second respondent purchased the lorry which is involved in the accident three months prior to the date of accident, that would not be legal evidence at all in this matter as he is not person who had any personal knowledge of the ownership or the transfer. Nor is there any evidence to show that he was aware of the transfer for any particular reason. On the other hand, we have R.W. 1, the administrative officer of the insurance company, who would not give any direct evidence as to whether there was a transfer or not. He had simply stated that it appears that the second respondent had purchased the vehicle. AS to when he purchased and whether it was prior to the accident are not found in the evidence of R.W. 1. On the materials, therefore, there is nothing to show that there was any transfer from the third respondent to the second respondent before the date of the accident . In the circumstances, therefore, we have to proceed on the basis that the third respondent was the owner and continues to be the owner.

4. The learned counsel for the insurance company was at pains to show that in the case of a motor vehicle, it is not necessary that there should be transfer of the registration in order to effectuate a valid transfer and that transfer may be effected immediately by sale and purchase by delivery of possession. In support of this contention, he has relied on the decisions in M. Bhoopathy v. M. S. Vijayalakshmi [1966] ACJ 1; South India Insurance Co. Ltd. v. Lakshmi [1971] ACJ 122 (Mad) and Hema Ramaswami v. K. M. Valarence Panjani : AIR1981Mad174 . All these cases are irrelevant. In each and everyone of these cases it was found that there was a transfer by sale and purchase and passing of consideration. The only point taken was that the sale was not complete till there was an endorsement in the registration certificate. It was held that the transfer does not wait till the endorsement is made in the registration certificate and that when the sale and purchase in effected and the consideration passed, the sale is complete. That is not the case here. There no evidence to show when it was sold and whether the second respondent purchased it at all from the third respondent. In the circumstances, we are unable to say that there was any transfer at all which will stand in the way of the claimant. The net result is that the third respondent will be liable for the claim and the first respondent, insurance company, will be vicariously liable. As the second respondent has not questioned its liability and filed any appeal, the decree granted by the Tribunal as against the second respondent also could not be varied. The net result is that all the respondents are jointly and severally liable to pay the money to the claimant-appellant. We may also point out that the second and third respondents remained ex parte and they did not deny liability. The claimant, who is not aware as to who is the owner of the vehicle, has impleaded both the second and third respondents as parties to the claim petition. If the insurance company wanted to extricate itself from liability on a specious plea that the policy is not in the name of the owner, it should have pleaded and proved by showing that the third respondent had transferred the vehicle when the accident took place and that having not been done, it cannot deny its liability. The burden is certainly on the insurance company to prove that the third respondent was not the owner on the date of the accident and that the insurance company having failed to do so, they have to suffer the liability. The request of the learned counsel for the insurance company to give a second chance by way of remand to the Tribunal below in order to prove whether there was a transfer or not on the date when the accident occurred, to say the least, is unreasonable and unjustified and could not be entertained at this stage.

5. In the result, the appeal is allowed. The judgment and decree of the Tribunal is modified and there will be a decree against the three respondents jointly and severally for a sum of Rs. 36,000. The appellant will be entitled to her costs. Since respondents Nos. 2 and 3 remained ex parte and did not contest the appeal, the costs would be paid by the insurance company, the first respondent.